Why DUI Marijuana is Almost Impossible to Prove
Columbus Georgia DUI Lawyer Mark P. Jones often represents clients accused of impaired driving, including clients accused of driving under the influence of marijuana.
In Georgia, Marijuana DUIs are extremely difficult to prove. This is so for two reasons
(1) Marijuana DUIs Are Difficult to Prove Because Marijuana Has No Per Se DUI Statute.
In 1999, the Supreme Court of Georgia declared OCGA 40-6-391(a)(6) unconstitutional. See Love v. State, 271 Ga. 398, 517 S.E.2d 53 (1999). Under that code section, the presence of any THC in the bloodstream while operating a motor vehicle constituted a per se DUI violation, i.e., all the State of Georgia had to prove was the presence of marijuana metabolites in the driver’s system while operating a motor vehicle.
The Supreme Court of Georgia struck down the statute as completely unconstitutional, and it was. The Georgia Supreme Court noted that the statute would permit legal users of medical marijuana to be charged with DUI per se marijuana without any rational basis, which did not further the policy of Georgia’s DUI statute: to promote safe driving. See generally OCGA 43-34-121(d) (Georgia’s medical marijuana research statute).
Thus, in order to be prosecuted for DUI Marijuana in Georgia, the driver must be prosecuted under the garden-variety “less safe” subsection of the DUI statute, OCGA 40-6-391(a)(1), which requires the State of Georgia to prove beyond a reasonable doubt some act of less safe driving or substantial impairment such that it was less safe for the driver to drive.
Compare Colorado’s DUI Marijuana statute, Colo. Rev. Stat. Ann. 42-4-1301(6)(a)(IV), which specifies a per se limit of 5 nanograms of delta 9 tetrahydrocannabinol per milliliter of the blood. (Note that some argue that this limit of 5 nanograms is too high.). In Lawyer Mark Jones’ view, this may be quite low as some sources suggest that a single marijuana use results in 100-200 nanograms of THC absorbed per mililiter almost immediately after smoking marijuana.
(2) Marijuana DUIs Are Difficult to Prove Because of Unreliable Testing and a Misunderstanding of Chemistry by Legislators and Judges.
Since THC metabolites remain in the system for as long as one month after use, there is simply no way to prove beyond a reasonable doubt whether the THC metabolites present in the driver’s system actually impaired the driver without an understanding of what specific metabolites need to be tested for.
That is why it is so important that a blood test be conducted for the presence of the psychoactive component or marijuana: delta 9 tetrahydrocannabinol. More specifically, the test should test for the presence of the metabolite 11-hydroxy-THC, which is the metabolite that the psychoative portion of marijuana’s THC breaks down to.
The problem is that many marijuana drug tests test for the presence of any THC metabolite, including non-psychoative metabolites such as 11-nor-9-carboxy-THC. Carboxy-THC is not psychoactive (meaning there is no impairment from its presence in the system) and can remain in the system for as long as 30 days following marijuana use. See State v. Harris, No. CV-13-0056-PR (Ariz. Sup. Ct. 2014).
In the Harris, case the issue was the State of Arizona’s marijuana DUI statute was couched in terms of the presence of THC metabolites in the blood, but failed to specify which THC metabolite. The Court held that the statute required the presence of the hydroxy THC metabolite before a driver could be convicted of marijuana DUI because the presence of carboxy THC did not necessarily indicate impaired driving since that metabolite could be present for weeks after use of the drug.
In sum, Marijuana DUIs are quite difficult for the State of Georgia to prove. The State of Georgia must proceed under the more vague, “less safe” statutory subsection of Georgia’s DUI statute to secure a conviction. Further, even if a blood test is conducted, the test must test for, and must show the presence of the proper form of THC in the blood to demonstrate impairment beyond a reasonable doubt. Simply showing the presence of Carboxy-THC is not sufficient to demonstrate impairment.
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